FOUNDATIONS OF IP LAW SEMINAR – FALL 2013

Information About the Course  Foundations of Intellectual Property Law is a three-credit limited enrollment seminar for upper-level law students at the University of Pittsburgh School of Law, with enrollment limited to 12 students. Prior coursework in intellectual property law is required, preferably in at least one of the intellectual property law courses offered at Pitt Law.

This is the homepage, reading list, and syllabus for the seminar. This page is for students enrolled in the Fall 2013 version of the seminar.

Course Objectives

The official course description is this:

This seminar deals with the theoretical and policy foundations of patent, copyright, and trademark law. The readings consist of both contemporary and “classic” law review articles and other primary and secondary sources that explore connections between intellectual property law and a variety of possible justifications for the law and its leading cases, statutes, and treaties, including history, liberal political theory, economics and other social sciences, literary theory, and cultural theory.

The bulk of the work of the seminar consists of supervision and discussion of original research by students (that is, research in print collections and other collections of analog sources, and digital archives of print collections) on historical intellectual property topics of their choosing, and the production and classroom presentation of a significant piece of original writing by each student.

A fuller description of the goals of the course is this. In Foundations of IP Law , you will:

  • Participate in some substained engagement with primary sources that surround key moments of the history and theory of intellectual property law. “Sustained engagement” is the key phrase here. Readings, class discussions, and your own research and writing will focus in great depth on a very small number of leading cases.
  • Master the theory and policy behind the key doctrines of intellectual property law.
  • Research and write. This is a course in advanced research and legal writing. Because much of the focus of the seminar is on older leading cases, much of the research to be conducted will focus on materials that are available only in paper form, or not available on the Internet, or both. It is likely that students will need to acquire and apply legal research skills that would have been familiar to students of a generation ago. Your writing will be subjected to searching critiques.  Students should expect to have their writing scrutinized at the level of the word and the sentence, at the level of the concept and structure of the argument, and at the level of content.

Classroom Computer and Wireless Policy  For the Fall 2013 version of Foundations of IP Law, students are not permitted to use laptop computers or equivalent devices (such as netbooks, smartphones, Blackberries, and/or iPhones, iPads, etc.) in the classroom, except when they are leading a presentation to the entire class. Mobile phones and other mobile telecommunications devices should be switched off. If your device rings in class, then you will be expected to bring brownies to the entire class during the following class session. If you answer your phone in class, or leave the classroom to answer your phone, then the device may be confiscated by me and returned to you by the Associate Dean for Academic Affairs.

Class Meeting Time and Place  Class will meet on Tuesdays from 3:30 p.m. to 5:20 p.m. in Room 118.

Attendance and Preparation  The Law School’s attendance policy does not apply to this course. Students are expected to attend 100 percent of class meetings. Students are expected to arrive for class on time. If a student arrives late, I may exclude that student from the classroom. Students are expected to read assignments in advance of the class meeting for which they are assigned.

Academic Integrity  As in all classes, students enrolling in this course are expected to comply with the University of Pittsburgh’s Student Code of Conduct, which may be accessed online at http://www.studentaffairs.pitt.edu/studentconduct/.   Students are expected to comply with the University of Pittsburgh’s and the School of Law’s Guidelines on Academic Integrity, which are available at:

Students with Disabilities  It is the policy and practice of the University of Pittsburgh School of Law to comply with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Commonwealth of Pennsylvania requirements regarding students and applicants with disabilities. Under these laws, no qualified individual with a disability shall be denied access to or participation in services, programs, and activities of the University of Pittsburgh School of Law. Students who require accommodations because of a physical, learning or other disability must be evaluated by the Office of Disability Resource Services (ODRS). The ODRS will document and verify the student’s status and make recommendations for appropriate accommodations to the Associate Dean of Students, Kevin Deasy. If you have a disability for which you are or may be requesting an accommodation, you are encouraged to contact Disability Resources and Services, 216 William Pitt Union (412-648-7890/ 412-383-7355 (TTY)) as early as possible in the term. DRS will verify your disability and determine reasonable accommodations for this course.

Contacting Prof. Madison  My office hours are on Monday afternoons from 1:30 p.m. to 3:00 p.m. and at other times by appointment. My office is Room 311. Students should make an appointment via e-mail at madison@pitt.edu or michael.j.madison@gmail.com.

Reading Materials  The primary materials for the seminar are readings from Intellectual Property Stories (Jane C. Ginsburg & Rochelle Coooper Dreyfuss eds., 2006). Each student should have a copy of that book. Copies can be purchased at amazon.com and barnesandnoble.com, among other places. Supplemental cases for certain class meetings are noted in the list of Reading Assignments and will be posted online.

Reading Assignments and Outline of Classes

Class One, Tuesday, August 27:

  • Jane C. Ginsburg and Rochelle Cooper Dreyfuss, Introduction (pp. 1 – 7);
  • Douglas G. Baird, The Story of INS v. AP: Property, Natural Monopoly, and the Uneasy Legacy of a Concocted Controversy (pp. 9 – 35);
  • International News Service v. Associated Press, 248 U.S. 215 (1918) [Download the case]
  • Read this Syllabus in its entirety.  Come to class prepared to discuss one or more possible paper topics.

Class Two, Tuesday, September 3:

  • Paper topic proposals are due by email.  These should be not more than 250 words or one printed (double-spaced) page in length.
  • Craig Joyce, The Story of Wheaton v. Peters: A Curious Chapter in the History of Judicature (pp. 36 – 76);
  • Wheaton v. Peters, 33 U.S. (8 Peters) 591 (1834) [Download the case]

Class Three, Tuesday, September 10:

  • Diane Leenheer Zimmerman, The Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusivity (pp. 77 – 108);
  • Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) [Download the case]

Class Four, Tuesday, September 17:

  • John F. Duffy and Robert P. Merges, The Story of Graham v. John Deere Company: Patent Law’s Evolving Standard of Creativity (pp. 109 – 158);
  • Graham v. John Deere Co., 383 U.S. 1 (1966) [Download the case]

Class Five, Tuesday September 24:

  • Outlines of papers are due prior to or at the beginning of class. The outline consists of a section by section and paragraph by paragraph statement of all topic sentences proposed for the paper. In addition, a list of all proposed research sources should be turned in prior to or at the beginning of class.
  • Pamela Samuelson, The Story of Baker v. Selden: Sharpening the Distinction Between Authorship and Invention (pp. 159 – 193);
  • Baker v. Selden, 101 U.S. 99 (1879) [Download the case]

Class Six, Tuesday, October 1:

  • Graeme B. Dinwoodie, The Story of Kellogg Co. v. National Biscuit Co.: Breakfast with Brandeis (pp. 220 – 257);
  • Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111 (1938) [Download the case]

Class Seven, Tuesday, October 8:

  • R. Anthony Reese, The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses (pp. 259 – 297);
  • Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (C.C.D. Mass. 1841) [Download the case]

Class Eight, Tuesday, October 15:

  • John R. Thomas, The Story of Graver Tank v. Linde: Intellectual Property Infringement in Flux (pp. 298 – 326);
  • Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271 (1949) [Download the case]

Tuesday, October 22:  No class.  Work on papers,

Class Nine, Tuesday, October 29:

  • Rebecca S. Eisenberg, The Story of Diamond v. Chakrabarty: Technological Change and the Subject Matter Boundaries of the Patent System (pp. 327 – 357);
  • Diamond v. Chakrabarty, 447 U.S. 303 (1980) [Download the case]

Class Ten, Tuesday, November 5:

  • Jessica Litman, The Story of Sony v. Universal Studios: Mary Poppins Meets the Boston Strangler (pp. 358 – 394);
  • Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) [Download the case]

Class Eleven, Tuesday, November 12:  Student presentations.

  • The first complete draft of the paper is due prior to or at the beginning of class. This draft should contain all footnotes and should be proofread and Blue Booked as if it were the final version of the paper.

Tuesday, November 19:  No class.  Work on papers.  This seminar meeting will be made up during the week of December 2 to accommodate remaining student presentations.

Class Twelve:  Tuesday, November 26:  Student presentations.

Last Day of Final Exams, Friday, December 20: The final version of the seminar paper is due, delivered to the Registrar’s Office at the law school not later than 12 noon on this date.  Please *also* send me an e-copy of the final paper, and a copy of your presentation materials (slides), if you use them.

Work Expected of Students, and Grading   The grade will be based primarily on a single long (25-35 pp.) research paper that is in the mode of the materials that constitute the primary readings for the course: a sustained historical exploration and analysis of a single leading older (pre-1981) case in American intellectual property law. Students will prepare four versions of the paper, two in outline form and two in fully elaborated (footnoted) form, and they will also be expected to prepare and deliver an oral presentation to the seminar based on their research.

Because I have taught this seminar in years past, certain cases have been covered by earlier students and are off-limits for purposes of this seminar.  Those cases are listed at the bottom of this page.

My guidelines for researching and writing the paper, and for making presentations, are here.

A recap of paper deadlines:

  • Tuesday, September 3: Paper proposals due.
  • Tuesday, September 24: Outlines are due.
  • Tuesday, November 12: First drafts are due.
  • Friday, December 20: Final drafts are due.

With respect to deadlines, follow the dates listed above rather than the schedule listed in the guidelines. No extensions from any of the deadlines will be granted except in the case of rare, dire, and unanticipated emergency, and then only with the approval of the Associate Dean for Academic Affairs.

Grading will follow the following guidelines: The paper topic proposal is graded on a pass/fail basis. The outline counts for 25% of the final grade. The full draft counts for 45% of the final grade. The final version of the paper counts for 30% of the final grade. The final grade may be adjusted upward or downward based on the depth of the student’s efforts to revise the full draft of the paper in light of my comments. Seminar grades may also be adjusted upward or downward based on the quality of the student’s classroom performance and paper presentation. As is customary for courses that are graded on the basis of students’ out of class work product rather than on the basis of final exams, papers will not be graded anonymously. Students should include their own names on the first page of all written work product used to satisfy the requirements of the seminar. Papers written for this seminar may be used to satisfy the upper level writing requirement.

Cases that are Off-Limits   Students in the Fall 2013 version of the seminar may not select any of the following cases for their papers:

Papers written in 2012:

  • Funk Brothers v. Kalo Inoculant
  • Hotchkiss v. Greenwood
  • Mazer v. Stein
  • O’Reilly v. Morse
  • RCA Mfg. Co. v. Whiteman
  • Twentieth Century Music Corp. v. Aiken
  • Walt Disney Productions v. Air Pirates

Papers written in 2010:

  • American Cotton Tie Co. v. Simmons
  • Brandir International Inc. v. Cascade Pacific Lumber Co.
  • Carson v. Here’s Johnny Portable Toilets, Inc.
  • Continental Paper Bag Co. v. Eastern Paper Bag Co.
  • Dallas Cowboys Cheerleaders v. Pussycat Cinema
  • Dawn Donut v. Hart’s Food Stores
  • Gilliam v. American Broadcasting Companies
  • Kalem v. Harper Brothers
  • Tilghman v. Proctor

Papers written in 2009:

  • Apple Computer, Inc. v. Franklin Computer Corp.
  • Burrow-Giles Lithographic Co. v. Sarony
  • Inwood Labs., Inc. v. Ives Labs., Inc.
  • Parke-Davis & Co. v. H. K. Mulford Co.
  • Sega Enterprises Ltd. v. Accolade, Inc.
  • Zacchini v. Scripps-Howard Broadcasting Co.